COURT FILE NO.: CR-14-10000717

DATE: 20180613

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DEMITRY PAPASOTIRIOU-LANTEIGNE and MLADEN (MICHAEL) IVEZIC

Hank Goody, Anna Tenhouse, and Pamela Santora, for the Crown

Gabriel Gross-Stein and Lance Beechner, for Demitry Papasotiriou

Michael Ivezic, on his own behalf

Ian Smith and Amy Ohler, Amicus

HEARD: February 28 and March 15, 2018

R.F. GOLDSTEIN J.

Ruling on mistrial applications

[1] Mr. Ivezic and Mr. Papasotiriou were convicted by the jury of first-degree murder in the death of Allen Lanteigne. The jury trial in this matter began on November 27, 2017. The jury returned a verdict of guilty on June 3, 2018.

[2] During the course of the trial Mr. Ivezic brought two applications for mistrials. He asked me to recuse myself for reasonable apprehension of bias. He brought the first application on February 28, 2018 and the second on March 15, 2018. I dismissed both and indicated that reasons would follow (Mr. Ivezic also brought a third that I dismissed summarily as frivolous). These are my reasons.

THE TEST

[3] The test for whether there is a reasonable apprehension of bias is set out in the dissenting judgment of de Grandpre J. in Committee for Justice and Liberty v. Canada (National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369:

The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would a informed person, viewing the matter realistically and practically--and having thought the matter through--conclude. Would he think that it is mor likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly."

THE FEBRUARY 28, 2018 APPLICATION

[4] Mr. Ivezic argued that I was biased against him. He pointed to four factors: first, he said that I called him a liar, using the term "prevaricating". Second, he argued that I chose to believe Crown counsel's information rather than his, demonstrating my bias. Third, he argued that I have not released my reasons dismissing the application brought under s. 11(b) of the Charter, which also demonstrated my bias. And fourth, that my ruling against him on the "lifestyle" evidence demonstrated that I am trying to have him convicted. I will deal with each of these points in turn.

[5] I have analyzed the digital audio on the day in question. It is quite true that I told Mr. Ivezic that he was prevaricating. He had consistently refused to answer my questions about whether he was going to pursue a "defence" of police misconduct or inadequate investigation. This question, of course, had implications for how he would cross-examine witnesses. It also had implications for the fair trial rights of Mr. Papasotiriou.

[6] This is the background to the issue: Mr. Ivezic had filed several affidavits over the years and made statements on the record alleging a conspiracy to frame him between the Toronto Police and the Centre of Forensic Sciences. He alleged that Crown counsel had participated or turned a blind eye to the conspiracy. Mr. Ivezic had also consistently alleged that the Toronto Police had conducted an inadequate investigation and showed "tunnel vision".

[7] The Crown and counsel for Mr. Papasotiriou had pressed for a voir dire on the issue, as mandated by the case law: R. v. Dhillon (2002), 2002 CanLII 41540 (ON CA), 166 C.C.C. (3d) 262 (Ont.C.A.). Knowing that Mr. Ivezic was unrepresented, I tried to work out with him questions that he could and could not ask, and then made a ruling. Mr. Ivezic promised that he would not ask questions relating to investigative misconduct. Ultimately I ruled that he could not pursue all aspects of investigative misconduct: R. v. Ivezic and Papasotiriou, 2018 ONSC 1845.

[8] A review of the record indicates that Mr. Ivezic did not make a good faith effort to comply with my ruling, and indeed with his promise that he would do so. He appears to have simply felt that my directions were merely suggestions or guidelines rather than – as I explained to him several times – binding rulings. He attempted to ask questions in areas where he said he would not go prior to holding a voir dire. This necessitated sending the jury out on multiple occasions so that I could correct him on his line of questioning. It was necessary to do so, because the questions he tried to ask potentially impacted Mr. Papasotiriou's fair trial rights – as I repeatedly explained to Mr. Ivezic.

[9] It is certainly true that I did accuse Mr. Ivezic of prevaricating. He was, in fact, prevaricating. To prevaricate is to avoid giving a direct answer. Mr. Ivezic consistently refused to give me a straight answer as to whether he would, in fact, pursue these "defences". It was critical for the management of the trial that he do so. I repeatedly gave him enormous latitude on the point.

[10] It is also true that during the exchange I noted that Mr. Ivezic was, in essence, playing games with the court. I indicated that I would have revoked bail if Mr. Ivezic had been out on bail. That was an unfortunate comment on my part. As noted, I listened to the exchange on the courtroom's digital audio system. The exchange took place outside of the presence of the jury. There is no doubt that the recording reveals a certain amount of frustration on my part. This was frustration generated by my granting Mr. Ivezic a great deal of latitude based on the fact that he was self-represented – to the possible detriment of the other parties and the trial process itself – and Mr. Ivezic repeatedly trying to take inappropriate advantage of that latitude.

[11] During the course of our exchange Mr. Ivezic argued that by using the term "prevaricate" I called him a liar. He argued that this was part of my bias. I did not respond directly to this argument. As stated, I used the term "prevaricate" to mean refusing to give a direct answer. That said, Mr. Ivezic quite obviously lied several times. He lied each and every time he promised not to ask certain questions that I told him he could not ask, and then proceeded to try and ask them in front of the jury.

[12] It is always hard to judge one's own actions, but I think that any fair-minded observer would have observed a court generally "bending over backwards" (in the words of Crown counsel) to assist Mr. Ivezic. A fair-minded observer would have seen Mr. Ivezic trying to take entirely inappropriate advantage.

[13] As an example, when Mr. Ivezic fired Ms. Segal he insisted that he needed to have access to the internet in order conduct his own defence. He needed, he said, to be in touch with witnesses by email. He needed to be able to conduct research in order to conduct his cross-examinations, including the cross-examination of expert witnesses. The institutional authorities at the Toronto South had very understandable security concerns about permitting an inmate to have unfettered access to the internet. I ultimately issued a detailed order. I ordered that Mr. Ivezic have access to the internet. I put some strict limits on what he could do – for example, I forbade him from creating social media profiles or looking at inappropriate websites. I also authorized the institution to have a third party conduct audits of his access. A representative of the institutional authorities subsequently drew my attention to some unusual download activity by Mr. Ivezic. It soon transpired that Mr. Ivezic had indeed breached my order in flagrant ways. He set up a Facebook profile. He set up a profile on a dating site. He downloaded significant amounts of pornography. In other words, he abused a privilege that was granted to him. He refused to be governed by an order in the same way that he refused to be governed by my rulings. In my view, my actions did not demonstrate bias. My actions were directed at controlling an ungovernable litigant who refused to abide by rulings or generally comply with trial procedure.

[14] The second ground raised by Mr. Ivezic is that I have consistently taken the Crown's word over his. Regrettably, the record over the course of this trial does show that Mr. Ivezic has made numerous statements about the course of the proceedings that required fact-checking. The specific instance that he points to, however, is this: an issue arose during the cross-examination of Detective Constable Crampton about whether or not the police had Mr. Ivezic's fingerprints during the investigation. In fact, they did – unbeknownst to me or to the jury. Mr. Ivezic was about to ask a question that would have revealed this fact to the jury. Crown counsel alerted me to the issue. The jury was excused. Crown counsel indicated that Mr. Ivezic had been under investigation for fraud. Mr. Ivezic took great umbrage at this comment – he said that in fact he was under investigation for stealing a car from a rental agency and had been charged with an offence that was not fraud. The charge, he says, was subsequently withdrawn. I simply do not see how that has anything to do with me accepting the Crown's word over his – surely the key point wasn't the nature of the charge he faced, but rather the fact that he was under investigation at one point and his prints had been taken. The submission that my interactions with him and with Crown Counsel on the record indicate bias on my part is also without merit.

[15] Mr. Ivezic's third point is that I have demonstrated bias by refusing to release my reasons on the s. 11(b) Charter application. It is true that I have indicated throughout the course of the trial that I would wait until the jury began deliberating before I released my reasons on that application. My reason, as I stated on the record, is that I was concerned that the reasons could inadvertently be published and I felt that it was better to simply keep this particular set of reasons unreleased for the moment. This was a decision that had nothing to do with Mr. Ivezic.

[16] Mr. Ivezic's final point is that my ruling on the so-called "lifestyle" evidence shows that I am trying to prevent him from defending himself. Again, I must disagree. The "lifestyle" ruling was subject to a publication ban but has been released to the parties: R. v. Ivezic and Papasotiriou, 2018 ONSC 1453. Mr. Ivezic simply disagreed with my ruling. That was not a basis for me to recuse myself.

[17] Mr. Ivezic raised another issue, namely that I was punishing him for the actions of his former counsel, Ms. Von Achten. He was unable to point to anything in particular, other than the fact that I dismissed two applications brought by Ms. Von Achten. There was no merit in that submission.

THE MARCH 15 APPLICATION

[18] On March 15, 2018 Mr. Ivezic brought another application for a mistrial. He believed that I was grimacing during his questioning and that my facial expressions showed that I was biased against him. Of course, I could not see whether I was grimacing at Mr. Ivezic. The record does not capture such things. Crown counsel took a different view of my facial expressions. I do not believe I was grimacing – at least not consciously.

[19] Mr. Ivezic also argued that I was biased because I issued an extraction order to remove him from his cell if he refused to come to court. Mr. Ivezic indicated one day by fax that he was, in essence, refusing to come to court. He indicated he was not well but the tenor of the fax was simply that he felt he was not being treated properly. Obviously that is not a reason to refuse to come to court. I indicated that it seemed possible that he was trying to delay the proceedings, but could not come to that conclusion. As it turned out I decided not to issue the extraction order. I left that to another judge to make the determination.

[20] Finally, Mr. Ivezic also argued that by dismissing the alternate suspect application on a preliminary basis I was punishing him. That, he said, showed a reasonable apprehension of bias. With respect, I dismissed the alternate suspect application because it simply had no merit: R. v. Ivezic and Papasotiriou-Lanteigne, 2017 ONSC 6521. Again, Mr. Ivezic simply disagreed with my ruling. Again, that is not a basis for recusal.

[21] Again, in my respectful view, no reasonable observer who has observed the proceedings here could conclude that I am biased. Many of Mr. Ivezic's complaints have to do with rulings that I have made. They were also based on a generalized complaint about what he saw as unfair treatment. I saw no basis upon which to grant the application for mistrial.

DISPOSITION

[22] The two mistrial applications brought by Mr. Ivezic were dismissed. I refused to entertain a third application, as I considered it frivolous.

R.F. Goldstein J.

Released: June 13, 2018

COURT FILE NO.: CR-14-10000717

DATE: 20180613

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DEMITRY PAPASOTIRIOU-LANTEIGNE and MLADEN (MICHAEL) IVEZIC

RULING ON MISTRIAL APPLICATIONS

R.F. Goldstein J.